By the Court, Wing, J.
This is the fiist time the question presented by the record in this case has been brought under discussion in this Court. Ordinarily it is far preferable that questions of magnitude should be fully discussed by counsel on both sides, that the Court may have the benefit of all the research that can be brought to bear upgn them., When this case was brought to a hearing, we felt some regret that the defendants were not represented in the discussion by counsel; but having folly examined all the authorities cited by the complainant in person, we are satisfied that no research or arguments of counsel could have changed the construction which we have put upon the words of the will.
There are many rules for the construction of wills like this, which the [88]*88complainant has collated in his elaborate and learned brief. They have been wisely established by the Courts for their own government, in order to exclude themselves from the exercise of an unlimited and arbitrary discretion in each particular case. According to these rules where they exist and where they apply, are Courts, of both law and equity, bound to determine the intention. It is of the utmost importance that these rules, when established, should not be departed from, whether they are wise in themselves or not. The community generally, and the bar especially, ought to be able to know before hand what will be the decision of a Court upon any question which may occur and which is not new or anomalous. If this be true, it is in vain to argue to a Judicial tribunal on a question like this, that any rule heretofore laid down for the government of the construction of wills should be departed from, because of its particular’ hardship, or of new views of policy. When nothing is established they may have their influence, not otherwise. (See 1 Kelly)
It is admitted to be a cardinal rule in the construction of wills, that the intention of the testator is first to bo ascrtained from the words of the will, and when ascertained, it will govern; but to this admission, there is an important qualification, namely, so far as that intention is consistent with the laws of the land, and no farther. To stop short of this, would be an infringement of that liberty of disposing of a man’s own property, which is the most powerful incentive to honest industry and is therefore essential to a free and commercial country; while on the other hand, did indulgence to the testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would bo vague and indeterminable, which would end in total insecurity. One of the most prominent examples to be found in the decisions illustrative of the principle, that the intention of the testator cannot control the construction^ repugnant to law, is, where the devise would create a perpetuity. (See Hovenden on Frauds, 255)
Courts will give to the specific words of the testator that technical effect which has been derived from usage and sanctioned by Judicial decisions, especially if they have become a rule of property. (5 Mass. Rep., 501; 8 Mass. R. 37, 38; 1 Nott & McCord., 71, 72; 1 Kelly, 102, 103; 1 Bay., 453; 1 P. Williams, 145; 3 Wendell, 510; 6 [89]*89Cruiser, 350. 3 Kelly, 562; 2 Law and Equity, 73, 74; 1 Doug., 340.) It shall be presumed that the testator was acquainted with the rules of law, (Langhorn vs. Sanford, 2, Meriv., 22,) and therefore they will be interpreted acccording to their legal effect and operation, unless it clearly appears he intended to use them in a different sense, (7 Vesey, 368; 2 B. & B., 204.) They are not to be rejected upon a mere suspicion that he who used them did not know what they meant. (5 Vesey, 401; 8 Vesey, 306.) But when from the context it is apparent they have been employed in an' arbitrary manner to signify something contrary to their ordinary meaning or legal signification, Courts of Justice are bound to give effect to them in the sense in which they are used. (Lord Mansfield in Perrin vs. Blake; 1 Richardson, E. R., 398-9.) It is not enough to doubt whether they were used in the sense which they properly bear. The Court ought to be quite satisfied (says Sir William Grant,) that they were used in a different sense, and ought to be able distinctly to say what the sense is in which they wore meant to be used; and Lord Eldon says, in the case of the Att’y Gen’l vs. Grote, 3 Merivale, 316, that individual belief ought not to govern the construction; it must be Judicial persuasion. Let us apply these principles and rules.
All the modes of acquiring title to land are reducible to title by act or operation of law, and title by purchase, or by the act or agreement of the parties; whether the agreement be founded on a valuable consideration or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a pinchase. (4 Kent's Comm., 373; 3 Wend., 508.) Then the question is, whether Gabriel Chene took under the will by descent or by purchase; whether he took a mere life estate in the premises devised by the will of his father or was entitled to an absolute fee therein. In deciding this caso, we do not propose to go into an analysis of the decisions, nor do we intend to notice but few of the cases of wills that bear upon it. Whoever may feel desirous of examining the doctrine established in Shelley’s case, will find in the brief of the complainant a reference to all the books ho will need in exploring this singular branch of legal learning. It will be sufficient for our purpose to ascertain and apply the correct rule of law, without our attempting to notice the cases in which apparently but [90]*90slight shades of difference in the the use of terms, have occasioned the application of a different rule. In the celebrated Shelley case, reported in 1 Coke’s Rep., 104, a, it was established at an early day as a rule of law, that when the ancestor by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either immediately or mediately to his heirs, in fee or in ..tail, that always in such cases the word “ heirs ” are words of limitation of the estate, and not words of purchase. In this case E. Shelley, being tenant in tail, suffered a recovery and declared the uses of it to himself for life, without impeachment of waste, remainder to trustees for twenty four years, remainder to the heirs male of the body of -E. Shelley and the heirs male of the body of such heirs male, remainder over. It was held, as stated above, that the words “heirs male” of the body of E. Shelley should be construed to operate as words of limitatipn and not as words of purchase; that, therefore, E. Shelley took an estate tail. The rule thus-established has never been shaken, but remains in all its original force-as a part of the common law of England.
In the ease at bar,in the will, there is not added to the word “heirs” the words “of his body;” and though it is necessary, in creating an estate tail, to designate of what body the hens inheritable shall issue; in cases of wills the law supplies the words of the body. (Pennington’s Rep., Vol. 1 & 2, 603-4; 1 Preston on Estates, 312, 314, 332; 6 Bacon Ab., 30; 5 T. Rep., 335; Hobart, 91; Co. Lit., 9, 27, a; 2 P. W., 2.)
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Wing, J.
This is the fiist time the question presented by the record in this case has been brought under discussion in this Court. Ordinarily it is far preferable that questions of magnitude should be fully discussed by counsel on both sides, that the Court may have the benefit of all the research that can be brought to bear upgn them., When this case was brought to a hearing, we felt some regret that the defendants were not represented in the discussion by counsel; but having folly examined all the authorities cited by the complainant in person, we are satisfied that no research or arguments of counsel could have changed the construction which we have put upon the words of the will.
There are many rules for the construction of wills like this, which the [88]*88complainant has collated in his elaborate and learned brief. They have been wisely established by the Courts for their own government, in order to exclude themselves from the exercise of an unlimited and arbitrary discretion in each particular case. According to these rules where they exist and where they apply, are Courts, of both law and equity, bound to determine the intention. It is of the utmost importance that these rules, when established, should not be departed from, whether they are wise in themselves or not. The community generally, and the bar especially, ought to be able to know before hand what will be the decision of a Court upon any question which may occur and which is not new or anomalous. If this be true, it is in vain to argue to a Judicial tribunal on a question like this, that any rule heretofore laid down for the government of the construction of wills should be departed from, because of its particular’ hardship, or of new views of policy. When nothing is established they may have their influence, not otherwise. (See 1 Kelly)
It is admitted to be a cardinal rule in the construction of wills, that the intention of the testator is first to bo ascrtained from the words of the will, and when ascertained, it will govern; but to this admission, there is an important qualification, namely, so far as that intention is consistent with the laws of the land, and no farther. To stop short of this, would be an infringement of that liberty of disposing of a man’s own property, which is the most powerful incentive to honest industry and is therefore essential to a free and commercial country; while on the other hand, did indulgence to the testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would bo vague and indeterminable, which would end in total insecurity. One of the most prominent examples to be found in the decisions illustrative of the principle, that the intention of the testator cannot control the construction^ repugnant to law, is, where the devise would create a perpetuity. (See Hovenden on Frauds, 255)
Courts will give to the specific words of the testator that technical effect which has been derived from usage and sanctioned by Judicial decisions, especially if they have become a rule of property. (5 Mass. Rep., 501; 8 Mass. R. 37, 38; 1 Nott & McCord., 71, 72; 1 Kelly, 102, 103; 1 Bay., 453; 1 P. Williams, 145; 3 Wendell, 510; 6 [89]*89Cruiser, 350. 3 Kelly, 562; 2 Law and Equity, 73, 74; 1 Doug., 340.) It shall be presumed that the testator was acquainted with the rules of law, (Langhorn vs. Sanford, 2, Meriv., 22,) and therefore they will be interpreted acccording to their legal effect and operation, unless it clearly appears he intended to use them in a different sense, (7 Vesey, 368; 2 B. & B., 204.) They are not to be rejected upon a mere suspicion that he who used them did not know what they meant. (5 Vesey, 401; 8 Vesey, 306.) But when from the context it is apparent they have been employed in an' arbitrary manner to signify something contrary to their ordinary meaning or legal signification, Courts of Justice are bound to give effect to them in the sense in which they are used. (Lord Mansfield in Perrin vs. Blake; 1 Richardson, E. R., 398-9.) It is not enough to doubt whether they were used in the sense which they properly bear. The Court ought to be quite satisfied (says Sir William Grant,) that they were used in a different sense, and ought to be able distinctly to say what the sense is in which they wore meant to be used; and Lord Eldon says, in the case of the Att’y Gen’l vs. Grote, 3 Merivale, 316, that individual belief ought not to govern the construction; it must be Judicial persuasion. Let us apply these principles and rules.
All the modes of acquiring title to land are reducible to title by act or operation of law, and title by purchase, or by the act or agreement of the parties; whether the agreement be founded on a valuable consideration or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a pinchase. (4 Kent's Comm., 373; 3 Wend., 508.) Then the question is, whether Gabriel Chene took under the will by descent or by purchase; whether he took a mere life estate in the premises devised by the will of his father or was entitled to an absolute fee therein. In deciding this caso, we do not propose to go into an analysis of the decisions, nor do we intend to notice but few of the cases of wills that bear upon it. Whoever may feel desirous of examining the doctrine established in Shelley’s case, will find in the brief of the complainant a reference to all the books ho will need in exploring this singular branch of legal learning. It will be sufficient for our purpose to ascertain and apply the correct rule of law, without our attempting to notice the cases in which apparently but [90]*90slight shades of difference in the the use of terms, have occasioned the application of a different rule. In the celebrated Shelley case, reported in 1 Coke’s Rep., 104, a, it was established at an early day as a rule of law, that when the ancestor by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either immediately or mediately to his heirs, in fee or in ..tail, that always in such cases the word “ heirs ” are words of limitation of the estate, and not words of purchase. In this case E. Shelley, being tenant in tail, suffered a recovery and declared the uses of it to himself for life, without impeachment of waste, remainder to trustees for twenty four years, remainder to the heirs male of the body of -E. Shelley and the heirs male of the body of such heirs male, remainder over. It was held, as stated above, that the words “heirs male” of the body of E. Shelley should be construed to operate as words of limitatipn and not as words of purchase; that, therefore, E. Shelley took an estate tail. The rule thus-established has never been shaken, but remains in all its original force-as a part of the common law of England.
In the ease at bar,in the will, there is not added to the word “heirs” the words “of his body;” and though it is necessary, in creating an estate tail, to designate of what body the hens inheritable shall issue; in cases of wills the law supplies the words of the body. (Pennington’s Rep., Vol. 1 & 2, 603-4; 1 Preston on Estates, 312, 314, 332; 6 Bacon Ab., 30; 5 T. Rep., 335; Hobart, 91; Co. Lit., 9, 27, a; 2 P. W., 2.)
It would seem to any one reading the will in this case, that the intention of the testator to give a life estate only, to his son Gabriel, was so» very plain, that it could not be doubted. Granting that this intention is plainly expressed, this can make no difference; in all cases the testator does mean so; but what did he intend should happen after the death of Gabriel ? Sir William Blackstone says (in the case of Perrin vs. Blake, cited 6 Cruise, 360,) the true question of intent will turn, not upon the quantity of the estate intended to be given to the first devisee, but upon the nature of the estate intended to be given to the heirs of his body; and where the second devise is inconsistent with the first, we must adopt such construction as will best effectuate the general intent of the testator. It is for this purpose that the rule is applied, that [91]*91“where a testator shows a particular and also a general intent, which' are inconsistent with each other, the general intent will be established, and the particular one disregarded.” This rule was fully illustrated in the case of Robinson vs. Robinson, (1 Bur., 38.) In that case, beyond all doubt, the testator meant that the first taker should receive only an estate for life, because he had said so in express terms; but as it appeared this was inconsistent with the general intent, it was held the first taker must take an estate tail in order to effectuate the devisor’s general intent, which was that the inheritance might be preserved for his heirs. “To restrict it to a life estate in the first, was the particular intent; to preserve the inheritance for the heirs was the general intent; the former was the intended means, the latter the intended end; and as these two intentions could not stand together, the particular intent was sacrificed to the general intent.” (See 1 Fearne, 27, 28, 78, 84, 85., &c.)
So strong is the rale, and so closely has it been adhered to, that Mr. Preston, (in his book on Estates, 365-6,) treating of this rule in Shelley’s case, as it had been applied to wills, and citing the cases, says: “ Neither ■ the express declaration that the ancestor shall have the estate for life and no longer, nor that he shall have only an estate for life in the ’ premises, and after his decease it shall go to the heirs of his body, and in default of such heirs, vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator, nor that the ancestor shall be tenant for his fife and no longer, and that it shall not be in his power to sell, dispose, or make way with any part of the premises, nor a provision that the ancestor shall not be impeached for waste, nor that he shall have a power of leasing or jointureing, nor the interposition of an estate to trastees to support the contingent remainder, nor a direction that the heirs shall take severally and successively as they shall he in priority of birth, every elder and the heirs male of his body to be preferred to every younger, will change the word ■ heirs into words of purchase.”
In this case an estate for life was given to Gabriel Chene, and after his decease it was to go, or in the words of the will, become the property of a particular branch of his heirs, viz: his male heirs, as a class, so that the whole line of heirs to the first taker, who answer the description in the will, will succeed him as such; and these heirs must take by descent [92]*92and in the character of heirs. (1 Preston on Estates, 365; 4 M. & S., 365.) There are no words of limitation superadded to the words •male heirs, to show that the testator meant the children of Gabriel only.
The cases in England are uniform upon this subject, and establish the fact that Gabriel Chene was tenant in fee tail, and the statute of our State, (see code of 1827, p. 261,) made to dock entails, is applicable to the case, and by it the estate of the tenant in tail is raised to an allodial estate.
The doctrine of Shelley’s case, which we have been considering, is a part of the common law, and has been maintained in England by a series of decisions' during the last three hundred years; it was adopted into the United States as a part of the common law. It is said that the rule owes its origin to feudal policy, to the war made by the Courts upon perpetuities and then desire to free real estate from the embarrassments ofentailments; but whether this be so or not, we say, in the language of Judge Lane of Ohio; (see 4 Ohio Rep., 465; McFeeley's, Lessees, vs. Moore's Heirs,) “ it has been too long' established to be abrogated by us.” From the earliest period, we find it a settled rule of the common law. It is found in the Year Books; it is stated in the Institutes as clear and undisputed; it is recognized in the abridgments of Fitzherbert & Rolle; it has descended, in the English Courts, to the present time, unimpaired by attempted innovations, and flourishing in full vigor; it has been adopted in the United States. In Connecticut, Maryland, Virginia, South Carolina, New York, Pennsylvania, New Jersey and Georgia it formed a part of the common law, and it continues to exist as a rule of property, except where abolished by statute. If its policy be doubted, let the legislature be called upon to act; but if we should disregard a rule, which has prevailed so widely, and subsisted so long, it would be an unfaithful interpretation of the law. In the following cases in the United States this rulo was fully sustained: (1 Dall., 47; 1 Yeates, 332; 10 S. & R., 429; 2 Yeates, 410; 1 Johns, Cases, 387; 3 lb., 384; 11 Wend., 259, 672; 3 Hill, 165; 3 Denio, 485; 1 Barbour, S. Q., 576, 577; 1 Comstock, 492; 4 Leigh., 90, 91, 112; Pennington's Rep., 215, 601; 1 Day., 299; 3 do., 338; 15 Pick., 104; 10 [93]*93Metcalf 366; 1 Bay., 453; 1 Nott & McCord, Ch’y, 60; 1 Nott & McCord, 69; 5 Ohio, 465; 1 Kelly, 102; 2 Denio, 9.)
Tins rule has been abolished by statute in Massachusetts, New York, Ohio, and in this State. (See R. Code, 1846, Sec. 28, page 252.). Nothing but the power of legislation, both in England and the United States, has been able to put it down. The exercise’ of that power, (in many of the States,) is the fullest admission of the strength of the rule and of its security against judicial attack. 'We, therefore, are of the opinion that the prayer of complainant’s bill shoidd be granted.
Let it be certified to the Circuit Judge for the County of Wayne, as the opinion of this Court, ’that a decree should be entered according to the prayer of the complainant’s bill.
Certified accordingly.